Legal Commentary

Movies, Law, and Magic Grits

Posted on February 05, 2009
Thanks to Dan and the other Prawfs for having me back. Last night I screened My Cousin Vinny as the first installment of Penn State's Faculty Film Series. The purpose of the series is to bring together faculty and students to watch and discuss great movies about law...

Poker: Luck or Skill?

Posted on February 05, 2009
There are some posts over at Volokh Conspiracy regarding some recent litigation regarding underground Texas Hold 'Em games. Judge Cassell links to an amicus brief by the Poker Players Alliance in one of the cases. The key part of the Kentucky statute, judging solely from the amicus brief, forbids "gambling" as defined as: [S]taking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome...

Empty bi-partisanship

Posted on February 04, 2009
Paul Krugman captures why, at least as to the stimulus debate, the talk of bipartisanship is vacuous. Responding to David Broder's insistence that the bill needs "the best ideas from both parties," Krugman said: You see, this isn?t a brainstorming session ? it?s a collision of fundamentally incompatible world views...

Thank God We're Not Discussing the Michael-Phelps-Smoking-Dope Story!

Posted on February 04, 2009
Is anyone surprised that a 20-something über-athlete millionaire would smoke some pot at a party? My sense is that most people don?t care about this. (I live in Massachusetts, which recently decriminalized possession of less than an ounce of marijuana for personal consumption...

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Public Choice & Local Voice

Posted on February 04, 2009
I just posted on SSRN a draft chapter entitled "Federalism and Public Choice." (The chapter is to be included in a collection on Law and Public Choice, edited by Dan Farber and Anne Joseph O'Connell and published by Elgar). Writing this survey about public choice and federalism left me with the odd feeling that the literature really has nothing to say about public choice and federalism...

Heartening Hiring News

Posted on February 04, 2009
As I mentioned on the other thread, this may be heartening news to some. Some schools (ranked roughly b/w 25- 75) have asked me who's still on the market because they are still engaged in hiring and want to find promising candidates who are still available...

Reflections on Ledbetter, the Statute

Posted on February 04, 2009
Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat...

R.I.P., Irving Feiner

Posted on February 04, 2009
Irving Feiner died last month at the age of 84. Feiner was the defendant/petitioner in Feiner v. New York, the 1951 decision in which the Supreme Court upheld a conviction of a public speaker for disorderly conduct based on the audience's angry reaction to the speech...

Four Reasons Empiricism Won?t Fade Away This Time

Posted on February 03, 2009
Although no one has ?talked me down? from my bull market hypothesis about the historic trends in empirical movements in law, I believe that this third period of interest will be far larger and more enduring than either of the previous two even if the economy takes a very long time to recover from its current malaise...

"Positive Secularism"

Posted on February 03, 2009
The folks at Public Discourse were kind enough to publish an edited version of the remarks I gave at a recent conference, in Rome, on the "American Model of Religious Freedom." (Mary Ann Glendon convened the conference, as the U.S. Ambassador to the Holy See, to commemorate the 60th anniversary of the Universal Declaration on Human Rights and the 25th anniversary of the establishment of formal diplomatic relations between the two entities...

13 year-olds in prison for life...and the Eighth Amendment

Posted on February 03, 2009
In today's Times, Adam Liptak has a very interesting piece detailing the situation in which a defendant was sentenced to life without parole for a crime he committed at age 13. A quick overview:In 1989, someone raped a 72-year-old woman in Pensacola, Fla...

I aspire to Charlie, but I've got some Oprah in me.

Posted on February 03, 2009
During the hiring process, my least favorite question -- usually asked by students -- was "What's your approach to teaching?" I always wanted to respond, "What would you like my approach to teaching to be, friend?" Even today, I'm not sure how to describe my approach -- a little bit of lecture, some light-contact socratic, a song, a dance, whatever works...

What is the Second Amendment for?

Posted on February 03, 2009
Thanks to Dan for inviting me back on Prawfsblog. I thought I would devote the first half-dozen or so posts to a topic I have spent some time on recently ? the purpose, or purposes, of the Second Amendment. Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power...

Only Children as a Suspect Class?

Posted on February 03, 2009
The suggestion is in jest, of course, but has anyone else noticed how incredibly OK it seems to be to insult only children, even right to their faces? I'm an only child, and my son is an only child, and my son will almost certainly remain an only child (or, to put it another way, if he ends up with a brother or sister, that brother or sister will carry the name "Mistakey"), and people will occasionally say to me something like, "Oh, you're going to have another child, right?" or "Only children are so spoiled and weird" or "Why...

What Are We Supposed to Be Doing Here?: On the Tension between Theory and Practice

Posted on February 03, 2009
Not to name drop, but I was having dinner last week with a fairly famous law professor closely associated with the Law and Society movement. [Name withheld only because I haven't asked his permission to blog this.] We were discussing teaching criminal law and he said that he tried it once and couldn't bear it because he didn't feel like what was taught in criminal law bore any relationship to reality...

Misunderstood legal quotations

Posted on February 02, 2009
OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement...

Prisons in Haiti... and in California

Posted on February 02, 2009
I've been thinking this morning about the parameters we use to compare the scope of rights available to citizens in different countries. This month we've been hard at work putting together the California Correctional Crisis Conference, which will happen in San Francisco March 19-20 (and you are all, of course, warmly invited to RSVP and attend)...

Good to be back

Posted on February 02, 2009
Thanks to the nice people at Prawfs for letting me crash on the couch for another month. I'm glad to be back blogging after a long lay-off.It's probably because I'm trying to write a Criminal Procedure casebook that being a guest blogger puts me in mind of Justice White's opinion for the Court in Minnesota v...

Would Phil Areeda have been my facebook friend?

Posted on February 02, 2009
I've been hanging out for the past five years over at Mirror of Justice, where emotions run high in rollicking discussions of all things Catholic, legal, and theoretical, and for a much shorter period of time at Legal Ethics Forum, where emotions run significantly lower in discussions of all things Model Rulesish...

Good Night and Have a Pleasant Tomorrow

Posted on February 02, 2009
Thanks to Dan for letting me hang here for the last two months. I look forward to coming back. But, for now, I have one less excuse for not finishing my spring projects and managing to make Products Liability interesting at 5 pm on a Monday evening. I think I can say, as I sign off, that Mr...

See you in the funny papers

Posted on February 02, 2009
I've never understood how that expression might have originated (unless it was among mutual acquaintances of Garry Trudeau in his college days) or how it makes sense as a farewell. Still, for some reason it feels apt.Many thanks to Dan for giving me the chance to blog here for a month, and then giving me an extra month so I could end up with something like one month's worth of posts...

Cardinal Mahony and honest-services wire fraud

Posted on February 01, 2009
The invaluable Prof. Friedman's Religion Clause blog has this post, about this Los Angeles Times story concerning a wire-fraud investigation of Cardinal Roger Mahoney. This seems (putting aside the religious-liberty issues) an ambitious effort. I've not been following the matter in recent years, but I would not have thought that the honest-services theory reached this far...

Rotations

Posted on February 01, 2009
Just a quick note to say thanks for all the wonderful posts by our guests this past month. Some of them may linger a bit longer before saying goodbye, but with the new month, it's time to welcome (back) some new and familiar voices to the conversation...

Law School Hiring Thread, Part II: Callbacks/Offers Phase

Posted on February 01, 2009
Here's some of the info agglomerated so far from here. Please use the comments to this thread as a place to share info about callbacks and offers for the law teaching market. And feel free to note any errors and omissions. Please note that I have been updating the information based on compilations previously created by Marc DeGirolami...

Thinking institutionally

Posted on January 30, 2009
The often disappointing (in part because Bobos in Paradise indicates an ability to do better) David Brooks has a column up that connects with, among other things, interesting work by our own Paul Horwitz (and also with a number of conversations on this and other law-blogs)...

I'm glad I wasn't asked to moderate this panel discussion.

Posted on January 30, 2009
David Ignatius' moderating role in this Davos forum was not an easy one to perform. Without getting into the merits of the underlying debate topic, I'm curious to hear from those who have moderated difficult panels about how they tried to control things to avoid panelists from leaving in a huff...

Against bipartisanship II: Procedure or Substance?

Posted on January 29, 2009
As predicted in my anti-bipartisan screed, media and GOP sources are blaming Obama and the Democrats for the failure of bipartisanship that simply left House GOP no alternative but to vote unanimously against the stimulus bill and that, looking at Sen...

Whither the culture wars?

Posted on January 29, 2009
A whole lot of folks must have been out of the office yesterday because I am quoted in a Foxnews.com article on political clashes between the Catholic Church and the Obama administration. Although I am not sure that it quite captures my remarks to say that "Catholic politicians have been excommunicated in recent years for not supporting positions consistent with the church's teachings," I did note what seems to me to be an increased insistence upon on at least certain Bishops on faithfulness to the Church's position on life issues (as opposed to postions generally) and a willingness to enforce...

Against bipartisanship

Posted on January 29, 2009
A modest proposal that is going to sound like a bit of a screed: We need to stop, once and for all, talking about "bipartisanship." Drop the word and the concept from the political vocabulary. Stop treating it as something desirable or essential. And especially stop talking about it as intrinsically valuable as an end in itself (often more so than substantive governing)...

Media ethics and law-prof blogs

Posted on January 28, 2009
I am quoted today in an op-ed in the Daily Tar Heel. (H/T: My former colleague Joel Goldstein). The op-ed discusses the motion filed by former Durham District Attorney Mike Nifong, the main culprit in the Duke lacrosse mess, seeking to dismiss the § 1983 actions against him on absolute prosecutorial immunity grounds (and without seeing the motion, I have argued previously that he has a pretty strong argument)...

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